Patz suspect's mental illness history could be key

JENNIFER PELTZ

Tuesday

May 29, 2012 at 8:34 PM

NEW YORK - Pedro Hernandez has confessed to killing the 6-year-old boy at the heart of one of the nation's most prominent missing-child cases, police say. And he has schizophrenia and a history of hallucinations, his lawyer says.

Court-appointed doctors are still assessing Hernandez's mental state, and it's unclear how much it will factor in the case charging him with the 1979 murder of young Etan Patz.

But if his psychiatric record becomes an issue, he'll encounter a justice system that seeks to strike a balance between recognizing mental illness and holding people responsible for their actions - a balance that has shifted back and forth over more than a century and a half.

Hernandez, 51, remained in a psychiatric hospital Tuesday as authorities continued trying to flesh out his startling admission in a case that galvanized the movement to publicize the problem of missing children. Meanwhile, Etan's father made clear that the attention to the case since Hernandez's arrest last week had taken a toll, telling reporters they had "managed to make a difficult situation even worse."

"It is past time for you to leave me, my family and my neighbors alone," Stan Patz said in a note posted on his apartment building's door.

Police encountered Hernandez, who worked in a nearby convenience store, shortly after Etan vanished on his way to school on May 25, 1979. But investigators never considered Hernandez a suspect until a tipster pointed them his way this month, saying he had made incriminating statements. He responded with an emotional and gruesome confession: He said he strangled the boy, hid his body in a bag and a box and dumped it near some trash, police said.

His statements launched police and the Manhattan district attorney's office into a complex process of building a 33-year-old case with, so far, no physical evidence.

And it has started the courts on a parallel path of exploring Hernandez's mental health. After defense lawyer Harvey Fishbein told a judge that Hernandez was schizophrenic, bipolar, had had visual and auditory hallucinations, and had been on psychiatric medication for some time, the judge ordered an examination to see whether he was mentally fit to stand trial.

The results aren't yet known, and the judge may ultimately hold a hearing to decide whether Hernandez can go to trial. If not, he would be sent to a psychiatric hospital and evaluated periodically to see whether he had improved enough to go to court.

Such exams aim to assess whether someone is well enough to participate in a trial and aid his or her own defense. They are separate from an insanity defense, which revolves around the defendant's psychological state at the time of the alleged crime.

In New York and many other states, defendants have to prove they were so mentally ill that they didn't know what they were doing was wrong. If successful, they are sent to psychiatric hospitals until judged well enough for release, if ever.

Fishbein declined to comment Tuesday on whether he might pursue an insanity defense. It could be challenging to portray Hernandez's mindset so long ago, potentially involving digging up decades-old medical records, tapping friends' and relatives' memories of his behavior at the time, or both.

"The closer you can bring his mental health and treatment issues to the time of the crime, the more plausible it becomes that he was suffering from mental disorder at the earlier time," said Stephen J. Morse, a University of Pennsylvania law and psychiatry professor who's not involved in the case.

Insanity defenses are venerable - they date to a case in 1840s England - and all but a handful of U.S. states allow them. But they are rare. They are offered in less than 1 percent of felony cases nationwide and successful only about 20 percent of the time, according to Richard E. Redding, a professor at Orange, Calif.-based Chapman University School of Law.

Among the hundreds of thousands of criminal cases closed in New York state each year, an average of only about 40 end with either an insanity acquittal or both sides agreeing on an insanity plea, according to state statistics. That statistic might not capture some insanity acquittals that get reported simply as acquittals.

Legal standards for insanity defenses nationwide have loosened and tightened at points over the decades, with a significant tightening after John Hinckley Jr. successfully offered an insanity defense in the 1981 shooting of President Ronald Reagan. Many states stopped allowing insanity defenses for conduct people knew was wrong but couldn't control, among other changes.

Instead of an insanity defense, Hernandez could invoke psychiatric problems to say his confession wasn't valid or voluntary, notes Bryan Konoski, a New York criminal defense lawyer who has worked on insanity defenses. He isn't involved in Hernandez's case.

"One of the psychiatric issues you really have in this case is whether his confession is a false confession," Konoski said.

Police Commissioner Raymond Kelly has said Hernandez gave specific details that persuaded investigators his confession was true. He also told people long ago that he had "done something bad" and killed a child in New York City, according to the commissioner.

One of Hernandez's sisters, Norma Hernandez, said Tuesday that she went to police in Camden, N.J., years ago to report a rumor he had confessed at a prayer group. Camden police declined to comment on her remarks.

Kelly said Tuesday that detectives were speaking to Hernandez's siblings and members of the prayer group - and listening judiciously.

"Any high-profile case, you have to be careful, because people come out of the woodwork and make all sorts of claims and statements," the commissioner said.

Hernandez hasn't been linked to any other missing children's investigations, but Kelly said investigators aren't ruling anything out.

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